What happens when we request your file for an investigation
Recent Court of Session rulings on providing files and information
The Court of Session recently issued two rulings on the SLCC’s right to require information, including confidential information, from firms in order to investigate complaints. It also clarified the restriction on firms sharing legally privileged material where consent has not been given by their client.
For the most part, the rulings confirm how the SLCC has always worked. As the legal services complaints body, we have a statutory power to require files and information from practitioners, by a stated deadline, in order to discharge our statutory duty to investigate complaints.
Duty to co-operate with the SLCC
The duty to co-operate with the SLCC was also recently confirmed in new Law Society of Scotland Rule B1.17 , which says solicitors must deal with the Commission in an open, timely and co-operative manner, so as to enable the Commission properly to exercise and fulfil its statutory functions.
For client-initiated complaints, firms should simply share required files and information with us on request. This allows us to commence and complete our investigation as swiftly as possible, and avoids any unnecessary enforcement action, which can be costly for the individual firm and for the wider profession who fund our work.
How we manage the information you provide to us
Firms can provide files and information in the knowledge that they will be handled confidentially. In the case of third-party complaints, we will not share any confidential information with the third party. If necessary, any confidential information will be redacted from the complainer’s copy of the investigation report and any decisions. Firms can assure their clients that in sharing files with the SLCC they are complying with a statutory duty that overrides the client’s confidentiality, but only to the extent that we have access to their file for regulatory purposes. You could consider including this in your Terms of Business or Engagement Letters.
Questions about the information we require
The court has clarified that the only material which can be withheld by a firm is material which is legally privileged, where the client does not waive that privilege. In that situation, firms should speak to us to advise that material is being withheld on that basis and to discuss any issues that may raise for the investigation.
If you have any questions or concerns about the information you are being asked to share, or the timescale for compliance, you should contact us to discuss this. We will work with firms to ensure we are able to swiftly commence and complete a full investigation based on all the available information. However, in the absence of communication from a firm we may have to proceed with enforcement action.
Why a prompt response helps
We know complaints can be stressful and take time to respond to. However, a prompt response can help get the issue resolved swiftly. This will help reduce cost and delay for you and for the system overall, which the whole profession funds.
If you’d like to know more about our approach, please see our policy manual for more details. If you are dealing with a complaint against your firm, then your case investigator will be happy to discuss any specific questions you may have. If you have any general questions or comments, then please do contact us.